Duquesne Law Review


Of the three elements necessary to prove copyright infringement, the substantial similarity standard is particularly difficult to define and implement in the litigation of music copyright actions. This article traces the evolution and finetuning of the Krofft substantial similarity test and exposes the inherent difficulties in the Ninth Circuit's traditional, yet overboard application of the Krofft test by examining the complications it caused in a recent music copyright case, Thompson v Richie. Finally, the article recommends that the Ninth Circuit revise its substantial similarity test by making uniform the application of the substantial similarity test in all music copyright actions and changing the order in which the parties present the evidence to eliminate the confusion faced by fact finders and appellate courts and increase the reliability of verdicts in these cases. In following these suggestions, the courts will not only simplify the litigation process in the Ninth Circuit, they will increase the integrity and reduce inequity in the litigation of music copyright actions.

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